NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 12-1171
_____________
EUGENE MARTIN LAVERGNE,
Appellant
v.
JOHN BRYSON, in his official capacity as the Secretary
of the United States Department of Commerce;
JOHN GROVER, in his official capacity as the Director
of the United States Census Bureau;
KAREN L. HAAS, in her official capacity as the Clerk
of the United States House of Representatives;
JOHN BOEHNER, in his official capacity as the Speaker
of the United States House of Representatives;
DANIEL INOUYE, in his official capacity as the President Pro Tempore
of the United States Senate;
JOSEPH BIDEN; in his official capacity as the President of the Senate;
DAVID FERRIERO, in his official capacity as the Archivist of the United States
of America
_____________
On Appeal from the United States District Court
for the District of New Jersey
(No. 3-11-cv-07117)
District Judge: The Honorable Peter G. Sheridan
_____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
September 14, 2012
Before: SMITH and CHAGARES, Circuit Judges,
and ROSENTHAL, District Judge*
*
The Honorable Lee H. Rosenthal, United States District Judge for the Southern District of Texas, sitting
by designation.
(Filed: September 20, 2012)
_____________________
OPINION
_____________________
PER CURIAM
Eugene Martin LaVergne, proceeding pro se, 1 appeals an order of the United
States District Court for the District of New Jersey denying his request to convene
a three-judge panel under 28 U.S.C. § 2284 and dismissing his complaint. We
summarily affirm. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.
I.
LaVergne, a New Jersey citizen and registered voter, alleges in this suit that
the method of congressional apportionment under 2 U.S.C. § 2a is unconstitutional.
LaVergne asserts that the method violates (1) separation of powers, (2) the
nondelegation doctrine, (3) the principle of “one person, one vote,” and (4)
“Article the First,” an amendment to the United States Constitution proposed in
1789 that LaVergne asserts was ratified and is part of the Constitution. LaVergne
sought a declaratory judgment and an injunction ordering the leaders of Congress
to enact an apportionment plan consistent with Article the First’s ratio of one
member of Congress per 50,000 citizens and ordering the Vice-President of the
1
Although LaVergne is pro se, he received his license to practice law in New Jersey in 1990. His license
2
United States to count 15 electoral votes for New Jersey in the 2012 presidential
election. The relief LaVergne sought would expand the House of Representatives
from the 435-member size that has been statutorily set since the 1910s to over
6,160 members.
On December 16, 2011, the District Court on its own denied LaVergne’s
application for a show-cause order and his request for a three-judge panel, and
dismissed the case. LaVergne timely appealed. In this court, LaVergne moved for
a preliminary injunction, an expedited appeal, and an expedited initial en banc
review or panel review. This court denied the motions.
II.
We have jurisdiction under 28 U.S.C. § 1291. Our review of the District
Court’s order dismissing the complaint is plenary. Ill. Nat’l Ins. Co. v. Wyndham
Worldwide Operations, Inc., 653 F.3d 225, 230 (3d Cir. 2011). “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.” Id. (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). We may summarily affirm if an appeal presents
no substantial question. 3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6.
III.
was temporarily suspended in January 2011and indefinitely suspended by the New Jersey Supreme Court
in July 2011. In re LaVergne, 21 A.3d 1181 (N.J. 2011).
3
This appeal presents two threshold issues: standing and justiciability. The
District Court concluded that LaVergne lacked standing because, among other
reasons, he did not suffer the injury he complained about. The District Court
concluded that, if there was an injury, it was only to certain government officials,
such as the governor of New Jersey, who is responsible for implementing
redistricting under § 2a; New Jersey members of the House of Representatives,
who could lose their congressional seats as a result of redistricting; or certain
presidential candidates, who would want New Jersey to have a larger number of
electoral votes. (See A5). LaVergne disagrees with that conclusion, relying on
Department of Commerce v. U.S. House of Representatives, 525 U.S. 316 (1999).
In that case, the Supreme Court held that state voters’ “expected loss of a
Representative to the United States Congress” based on redistricting ordered under
§ 2a “undoubtedly satisfies the injury-in-fact requirement of Article III standing.”
Id. at 331. But in that case, statistical evidence showed that the plaintiffs’ votes
would be diluted through the loss of a congressional seat to another state. See id.
at 331–34; see also Schaffer v. Clinton, 240 F.3d 878, 885 (10th Cir. 2001)
(interpreting House of Representatives). Here, by contrast, the relief LaVergne
seeks would result in every state, based on its population, gaining congressional
seats under Article the First. The result would be an increase for each state in the
same proportion as the present method produces. If there will be “dilution” to
4
LaVergne’s vote when New Jersey is redistricted using the § 2a apportionment
method, LaVergne’s proposed solution would neither affect it nor change the size
of New Jersey’s congressional delegation relative to the size of other states’
delegations.
In addition to this problem, LaVergne at most alleges “a type of institutional
injury”—an allegedly unconstitutionally low number of representatives—“which
necessarily damages” all United States voters “equally.” Raines v. Byrd, 521 U.S.
811, 821 (1997); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 573–74
(1992) (explaining that the Supreme Court has “consistently held that a plaintiff . .
. seeking relief that no more directly and tangibly benefits him than it does the
public at large—does not state an Article III case or controversy”). He “has not
alleged a sufficiently personal injury to establish standing[.]” Schaffer, 240 F.3d at
885 (citing Raines, 521 U.S. at 821). Cf. also Clemons v. U.S. Dep’t of
Commerce, 131 S. Ct. 821 (2010) (summarily ordering voters’ constitutional
challenge to § 2a dismissed for lack of jurisdiction).
LaVergne’s claims also fail on other grounds, including lack of justiciability.
LaVergne’s constitutional challenge to § 2a is primarily based on his argument that
the apportionment method violates Article the First. He alleges that this proposed
constitutional amendment was ratified by the states in November 1791 or June
1792. Putting aside the considerable factual and historical problems with his
5
argument, “[t]he issue of whether a constitutional amendment has been properly
ratified is a political question.” United States v. McDonald, 919 F.2d 146, 1990
WL 186103 (table), at *3 (9th Cir. 1990) (per curiam) (citing Coleman v. Miller,
307 U.S. 433, 450 (1939)). In Coleman, the Supreme Court held that “the question
of the efficacy of ratifications by state legislatures . . . should be regarded as a
political question pertaining to the political departments, with the ultimate
authority in the Congress in the exercise of its control over the promulgation of the
adoption of the amendment.” 307 U.S. at 450. See also Luther v. Borden, 48 U.S.
(7 How.) 1, 39 (1849) (holding that “the political department has always
determined whether the proposed constitution or amendment was ratified or not by
the people of the State, and the judicial power has followed its decision”); United
States v. Foster, 789 F.2d 457, 463 n.6 (7th Cir. 1986) (holding that the issue of
“the validity of an amendment’s ratification [is] a non-justiciable political
question” and citing, among other cases, Leser v. Garnett, 258 U.S. 130, 137
(1922), and Coleman, 307 U.S. at 450).
LaVergne also argues that the § 2a apportionment method violates the
nondelegation doctrine and separation of powers. To the extent that these
arguments present justiciable questions, 2 they fail on the merits. As to the first
2
See U.S. Dep’t of Commerce v. Montana, 503 U.S. 442, 456–59 (1992) (rejecting the government’s
contention that a constitutional challenge to § 2a presented a nonjusticiable question because the
challenge was to whether “specific congressional action”—the enactment of § 2a—violated constitutional
principles); but cf. Clemons, 131 S. Ct. 821 (summarily ordering that voters’ constitutional challenge to
§ 2a—which the three-judge district court had determined was justiciable—be dismissed for lack of
6
argument, the Supreme Court has recognized that “in our increasingly complex
society, replete with ever changing and more technical problems, Congress simply
cannot do its job absent an ability to delegate power under broad general
directives.” United States v. Amirnazmi, 645 F.3d 564, 575 (3d Cir. 2011)
(quoting Mistretta v. United States, 488 U.S. 361, 372 (1989)). Congress may
“endow a coordinate branch of government with a measure of discretion” if the
delegation includes “‘an intelligible principle to which the person or body
authorized to [exercise the delegated authority] is directed to conform.’” Id.
(quoting J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928)).
Section 2a clearly contains an intelligible principle to guide the exercise of
delegated authority: “the method of equal proportions,” which is automatic in
character and which provides “procedural and substantive rules that are
consistently applied year after year[.]” Montana, 503 U.S. at 465. LaVergne’s
nondelegation argument is meritless.
LaVergne’s separation-of-powers argument similarly fails. The Supreme
Court’s “separation-of-powers jurisprudence generally focuses on the danger of
one branch’s aggrandizing its power at the expense of another branch.” Freytag v.
Comm’r, 501 U.S. 868, 878 (1991). Congress acted within its authority by
delegating the ministerial tasks of implementing the method of equal proportions,
for redistricting, to the Department of Commerce and its employees. Cf. also
jurisdiction).
7
Montana, 503 U.S. at 465 (holding, with regard to § 2a, that there is “no
constitutional obstacle preventing Congress from adopting such a sensible
procedure”).
Finally, LaVergne’s appeal of the District Court’s order denying his request
to convene a three-judge panel is limited to passing references to that issue. (See
Opening Br. at 5, 6 n.1, 9, 29–30). Such cursory presentation waives the issue on
appeal. See Skretvedt v. E.I. DuPont De Nemours, 372 F.3d 193, 202–03 (3d Cir.
2004) (“We have held on numerous occasions that an issue is waived unless a
party raises it in its opening brief, and for those purposes a passing reference to an
issue will not suffice to bring that issue before this court.” (internal quotation
marks and alterations omitted)); John Wyeth & Bro. Ltd. v. CIGNA Int’l Corp.,
119 F.3d 1070, 1076 n.6 (3d Cir. 1997) (Alito, J.) (“[A]rguments raised in passing
(such as, in a footnote), but not squarely argued, are considered waived.”).
Moreover, LaVergne does not seek reversal on this basis, or remand, but rather
states that this three-judge panel’s review of his claims suffices. (Opening Br. at
30).
IV.
This appeal does not raise a substantial question. We summarily affirm the
judgment of the District Court.
8